Opinion
Criminal Action No. 16-73
07-19-2017
UNITED STATES OF AMERICA, v. STEPHEN MATAKOVICH, Defendant.
ORDER
For the reasons that follow, Defendant's Motion for Discovery in Aid of Sentencing and for the Appointment of a Special Master (Doc. 104) is GRANTED IN PART and DENIED IN PART.
On May 26, 2017, after a five-day trial, a Jury found Mr. Matakovich guilty of violating 18 U.S.C. § 242, for use of excessive force against Gabriel Despres on November 28, 2015. The Jury found Mr. Matakovich not guilty of 18 U.S.C. § 1519, falsifying a record in contemplation of a federal investigation. On June 2, 2017, Defendant Stephen Matakovich filed a Motion For Discovery in Aid of Sentencing and for the Appointment of a Special Master. (Doc. 104). Sentencing in this matter is scheduled for October 24, 2017. (Doc. 112).
Defendant argues that throughout the proceedings, "the government has repeatedly failed to comply with basic discovery requirements by withholding Brady and Rule 16 material, in part because of its repeated - and incorrect - assertion that it was only required to provide the defense with evidence it intended to use in its case in chief." (Doc. 104) at ¶ 4. As the Government nicely summarizes, Defendant's Motion makes a multitude of requests from the Court:
Specifically, the Defendant requests (1) an Order directing the Government to produce any and all materials not previously provided that were subject to disclosure under Brady
v. Maryland, 373 U.S. 83 (1962) and Rule 16 (Motion, ¶ 22); (2) an Order directing the Government to provide all material the Government intends to rely upon at sentencing (Motion, ¶ 22); (3) an Order directing the Government to turn over all notes and/or reports of interviews with Gabriel Despres (Motion, ¶ 24); and (4) the appointment of a Special Master to review the discovery and provide the defense with any other materials "the government has withheld." (Motion, ¶ 26).(Doc. 106) at 1-2.
Defendant points to a variety of alleged evidentiary violations by the Government prior to and during trial to justify his position that the Government has failed to meet its discovery obligations and that the requested remedies are justified. See generally (Doc. 104). Defendant alleges that the Government withheld multiple pieces of evidence in violation of its pretrial discovery obligations. Specifically, (1) a photograph of the Defendant with the Aliquippa football players after his encounter with Mr. Despres; (2) an FBI Form 999 indicating that the FBI first obtained video of the incident from Heinz Field on December 7, 2015; (3) notes taken by Pittsburgh Police Lieutenant Victor Joseph that Defendant alleges were relevant to ADA Rebecca Spangler's testimony; and (4) criminal histories of Government witnesses Chelsey Jackson and the victim Gabriel Despres. (Doc. 104) at ¶¶ 7-8, 9-15, 16-18, 19.
The Government responds first by arguing that Defendant is not entitled to any of the relief he seeks. (Doc. 106) at 3. The Government also contends that the allegation that there was a pattern of discovery violations is unfounded. (Id.) at 7-8. Additionally, the Government represents that it provided Defendant with all information and evidence to which he was legally entitled. (Doc. 106) at 3-4. Moreover, the Government states that:
Even if any of these allegations rose to the level of a discovery violation, none involved bad faith on the part of the Government, nor does the Defendant allege as much at any point in his Motion. Further, none of the alleged violations prejudiced the Defendant, and, consequently, none violated his right to a fair trial.(Doc. 106) at 8, FN3.
"After conviction, a defendant's due process right to liberty, while diminished, is still present. He retains an interest in a sentencing proceeding that is fundamentally fair." Betterman v. Montana, 136 S.Ct. 1609, 1617 (2016). A defendant's due process rights at sentencing hearings include the rights afforded under Brady, Giglio and their progeny, and require the prosecution to produce exculpatory evidence known to the prosecution to the defendant, in accordance with any deadlines established by the Court. See e.g., Brady v. Maryland, 393 U.S. 83, 87 (1963). Similarly, the Jencks Act, which is codified in Rule 32(i)(2), applies to sentencing proceedings and requires the prosecution to produce witness statements at the conclusion of direct testimony of the witness. See e.g., United States v. Rosa, 891 F.2d 1074, 1079 (3d Cir. 1989). In addition, a criminal defendant enjoys due process rights to not have his sentence enhanced based on "inaccurate information," United States v. Reynoso, 254 F.3d 467, 473 (3d Cir. 2001) (citing United States v. Nappi, 243 F.3d 758, 763 (3d Cir. 2001)), "clearly erroneous facts," United States v. Wise, 515 F.3d 207, 218 (3d Cir. 2008); Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), "materially false information," United States v. McDowell, 888 F.2d 285, 290 (3d Cir. 1988), and/or "unsupported speculation," United States v. Berry, 553 F.3d 273, 281 (3d Cir. 2009). Finally, a District Court's computation of a higher sentencing range resulting from a due process violation "too seriously affects the fairness, integrity, or public reputation of judicial proceedings to be left uncorrected." United States v. Saferstein, 673 F.3d 237, 244 (3d Cir. 2012); United States v. Tai, 750 F.3d 309, 320 (3d Cir. 2014) (citing same).United States v. Kubini, No. CR 11-14, 2017 WL 2573872, at *19 (W.D. Pa. June 14, 2017). Additionally,
[t]he Jencks Act requires the prosecution to disclose witness statements in its possession that relate to the subject matter of the witness's testimony after the direct examination of the witness. See e.g., United States v. Merlino, 349 F.3d 144, 155 (3d Cir. 2003); 18 U.S.C. § 3500(b); Fed. Crim. P. 32(i)(2) ("If a witness testifies at sentencing, Rule 26.2(a)-(d) and (f) applies."). The Court of Appeals has rightly recognized that: "the sentence imposed on a defendant is the most critical stage of criminal proceedings, and is, in effect, the 'bottom-line' for the defendant, particularly where the defendant has pled guilty. This being so, we can perceive no purpose in denying the defendant the ability to effectively cross-examine a government witness where such testimony may, if accepted, add substantially to the defendant's sentence." Rosa, 891 F.2d at 1079.Id. at * 20.
In its briefing, the Government distinguishes between Brady material relevant to guilt and Brady material relevant to punishment, arguing that the former is not the appropriate subject of a post-conviction discovery motion. See Doc. 106 at 2 ("Evidence that constitutes Brady material relevant to guilt, which was allegedly withheld prior to trial, is not the proper subject of post- conviction discovery." United States v. Tykarsky, 446 F.3d 458, 478, n.15 (3d Cir. 2006) (affirming the district court's denial of a defendant's post-conviction motion for discovery of additional exculpatory evidence prior to sentencing, stating that such evidence is "not the proper subject of post-conviction discovery.")). The Court agrees. However, to the extent that the Government has not produced to Defendant all Brady material relevant to punishment, the Court hereby ORDERS the Government to do so no later than four weeks prior to sentencing. The Court does acknowledge that the Government represents that it has disclosed to Defendant that to which he is entitled, which the Court presumes covers Brady material relevant to punishment, and issues this Order in an abundance of caution. Therefore, the Motion is GRANTED IN PART insofar as Defendant seeks Brady material relevant to punishment that has not already been provided, assuming any such material exists.
Defendant next requests an Order directing the Government to provide all material the Government intends to rely upon at sentencing. (Doc. 104) at ¶ 22. Defendant has not pointed to any legal authority for this request nor can the Court find any. This request is simply too broad. As discussed above in the context of Brady and will be discussed below in the context of the Jencks Act, to the extent that it has not already been provided, Defendant is entitled to certain post-conviction pre-sentence disclosure. That is all. That entitlement does not extend to "all the material the Government intends to rely upon at sentencing," including, but not limited to, Rule 16(a)(1)(E)(i) (evidence "material to preparing the defense"), which the Defendant cites throughout his Motion. United States v. Robinson, 503 F.3d 522, 531-32 (6th Cir. 2007) (finding that Rule 16(a)(1)(E)(i) has no application to sentencing proceedings); see also United States v. Brown, 2008 WL 510126, *1 FN1 (M.D. Pa. February 22, 2008) ("That Rule, [Federal Rule of Criminal Procedure 16], however, does not apply to post-trial discovery questions."). As no such generalized access to discovery exists, Defendant's Motion is DENIED insofar as it requests "all material the Government intends to rely upon at sentencing." Material Defendant seeks to which he actually is entitled is covered by his somewhat more specific requests above and below.
Defendant's third request relates to notes and/or reports of interviews with Gabriel Despres, the victim. The Jencks Act requires the Government to disclose witness statements in its possession that relate to the subject matter of the witness's testimony after the direct examination of the witness. 18 U.S.C. § 3500(b); United States v. Merlino, 349 F.3d at 155. Fed. Crim. P. Rule 32(i)(2) states that "[i]f a witness testifies at sentencing, Rule 26.2(a)-(d) and (f) applies," thus expanding the Jencks Act requirement to the sentencing context. See also Rosa, 891 F.2d 1074 (holding Jencks Act disclosures apply equally to sentencing hearings as to trials).
Thus, in the case of notes and/or reports of interviews with Mr. Despres, should Mr. Despres testify at Mr. Matakovich's sentencing hearing, Defendant would be entitled to any Jencks Act material after Mr. Despres's testimony prior to the commencement of cross-examination. The Court notes that Defendant's specific request for "notes and/or reports of interviews" may be broader than what is permitted under the Jencks Act, which is limited to "statements" by a witness. 18 U.S.C. § 3500(e) ("The term 'statement' ... in relation to any witness called by the United States, means - (1) a written statement made by said witness and signed or otherwise adopted or approved by him; (2) a stenographic, mechanical, electrical, or other recording or transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or (3) a statement, however taken or recorded, or a transcription thereof, if any made by said witness to a grand jury."); c.f. United States v. Gross, 961 F.2d 1097, 1105 (3d. Cir. 1992) (upholding a District Court determination that the prosecutor's witness interview notes did not qualify as Jencks Act "statements."). Moreover, it is axiomatic that the Court cannot compel early production of Jencks Act material; the Government is not required to disclose it until the conclusion of direct testimony. However, if the Government intends to call Mr. Despres as a witness at Mr. Matakovich's sentencing hearing, it may voluntarily provide Mr. Matakovich with relevant Jencks Act material in advance of the sentencing hearing, if it so desires. Therefore, the Court DENIES the Motion insofar as it seeks early production of Jencks Act material.
Finally, the Court turns to Defendant's last request, the appointment of a Special Master. Defendant argues that the Government demonstrated a pattern of discovery violations throughout the course of these proceedings. See generally (Doc. 104) ("In light of the government's pattern of discovery [sic], this Court is 'empowered to order that [the government] comply with the Rule ... exclude the evidence, or enter other just relief.") (citing United States v. Lee, 573 F.3d 155, 161 (3d Cir. 2009)). The Government disputes that it violated its discovery obligations.
(Doc. 106) at 5 FN 1 ("The Government further notes that it went far above and beyond its pretrial discovery duties in providing the Defendant with the reams of documents related to both the incident of November 28, 2015, and to various other incidents in which the Defendant used a questionable level of force. Much of the documentation provided by the Government was not required by Rule 16, Brady, or any other applicable rule of discovery; rather the Government provided such evidence out of an abundance of caution to make the defendant aware of all prior bad conduct that could be subject to admissibility, should his trial strategy somehow open the door to such evidence. Moreover, the government agreed to, and did approach the Court, for a ruling regarding any such evidence prior to cross-examining the defendant about such prior bad conduct."). --------
The Court sees no justification for the appointment of a Special Master to review the discovery and provide the defense with any other materials the government has withheld. The Court therefore DENIES the Motion insofar as it seeks the appointment of a Special Master.
In sum, the Government's Motion is GRANTED IN PART and DENIED IN PART as follows: the Motion is GRANTED insofar as Defendant seeks Brady material relevant to punishment that has not already been provided, assuming any such evidence exists; the Motion is DENIED insofar as it seeks materials on which the Government intends to rely at sentencing; the Motion is DENIED insofar as it seems to request early production of Jencks Act material; and the Motion is DENIED insofar as it seeks the appointment of a Special Master.
IT IS SO ORDERED. July 19, 2017
s/Cathy Bissoon
Cathy Bissoon
United States District Judge cc (via ECF email notification): All Counsel of Record